Regulating Freedom of Speech

Tools

The Lesson

Introduction

: SCOTUS building as seen from the west side of 1st St N.E. (det.)

Credit: Courtesy, Wikimedia Commons

Freedom of speech is a fundamental American right, and regulation of that freedom has been a fundamental responsibility of the Supreme Court throughout our history. With the Internet, students can observe firsthand how today's Court exercises this responsibility at a time when technology has extended the freedom to speak in ways our nation's founders could not have imagined.

Learning Objectives

To trace the judicial review process within the Supreme Court from determination of facts through oral argument and the delivery of a written opinion

Examine the nature and limits of the Constitutional right to freedom of speech

Explore the nature and purpose of dissent within the context of Supreme Court rulings

Activity 1. General questions about freedom of speech

Begin by exploring some general questions about freedom of speech. Read the First Amendment and briefly discuss what "freedom of speech" meant to the Framers of our Constitution. What limits can be put on this Constitutional right? Students will likely mention the well-known example that we are not free to yell "Fire!" in a crowded theater. Guide discussion of this example to help students recognize that, because this use of free speech would likely cause harm to others, the government is justified in prohibiting it in the interest of public order. Ask students to suggest other examples where an individual's right to free speech might come into conflict with public or community rights in a similar way.

Activity 2. Ward v. Rock Against Racism Case

Against this background, introduce some of the questions at issue in the 1989 Supreme Court case Ward v. Rock Against Racism: Do musicians have a free speech right to play as loudly as they want in a public space? Can the government impose limits on the volume level of a musical performance? Can it enforce those limits by putting a government agent in charge of the sound system? What if the musical performance is part of a political protest? Have students express their opinions on these questions, then have them divide into research teams to study how the Supreme Court decided the issue.

Activity 3. Research and review the facts

Have each research team first review the facts of the case in Ward v. Rock Against Racism by accessing the Court's decision at the Oyez website. (Click on "Cases" at the Oyez homepage, then enter "Rock Against Racism" in the "Search by Title" area of the search form to retrieve a summary of the decision. Scroll to the full "Written Opinions of the Court.") Students will find the facts described briefly in the website's summary of the decision, and described more fully both in the first paragraph of the decision itself and in the first section of the opinion delivered by Justice Kennedy. Have each research team prepare a summary of the facts based on these three somewhat different descriptions and discuss their views of the case in class. What actually happened here? How would students characterize the parties on either side? What is at issue in the case for the City of New York? For the concert promoter, Rock Against Racism? What is at issue in the eyes of the Court? How would students themselves frame the underlying issue? Discuss in class how an element of interpretation enters into even a simple statement of the facts, and ask students what additional facts they think might be important for a different interpretation of this situation -- an historical interpretation, for example, or a sociological interpretation.

Activity 4. Analyze opinions of the Justices

Turn next to the Court's opinion, expressed by Justice Kennedy, and to the dissenting opinion expressed by Justice Marshall. Have each research team analyze these opinions to determine how the Justices ruled on each of the following questions:

Does the City of New York have a right to regulate the "time, place, or manner" of free speech in this case by limiting the volume level of public musical performances?

Is the City's method of regulating the volume level "content neutral"?

Is it "narrowly tailored" to serve the purpose of regulating the volume level?

Does it "leave open ample alternative channels of communication"?

Activity 5. Discuss and record opinions

Have each research team also record its own opinion (or opinions) on each of these questions. Then explore any points on which there is a difference of opinion, either within the Court or between the Court and your class. Some students may believe, for example, that the City should not be permitted to interfere with any concert in a public park, since a few hours of noise is not harmful to the community in the same way that shouting "Fire!" in a crowded theater would be. Students will find that the Court itself is divided on the question of whether the City's method of regulating volume is "narrowly tailored." Justice Kennedy accepts the City's argument that its control of the sound system provides an "effective" way to regulate volume without affecting the artistic quality of the musical performance. Justice Marshall, on the other hand, contends that, while "effective," the City's total control of the sound system is not "narrowly tailored" to the purpose of regulating volume, since it gives the City power to regulate all aspects of the musical performance.

Activity 6. Draft a response to Justice Marshall's dissent

Conclude by considering Justice Marshall's argument that New York City's method of regulating the volume at concerts is a form of "prior restraint" on free speech. He likens control of the sound system to control of the printing press in 17th-century England, and argues that it gives the City absolute power to suppress or restrict free expression, despite the City's assurances that it does not exercise this power. Does his argument overstate the case? Does it raise a legitimate concern? Why does he express this dissenting opinion? Have each research team draft a response to this part of Justice Marshall's dissent, using hypothetical examples to refute his argument or reinforce it.